1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 13-10-1992 passed by IVth Senior Civil Judge and Rent Controller, Karachi East, in Rent Case No,992 of 1987, Muhammad Ismail v. Qazi Muhammad Amin through his legal representative Muhammad Muneer and four others whereby an application filed by the respondent in respect of shop premises constructed on Plot No,2/93 situated in Shah Faisal Colony, Karachi, under section 15(2) of Rent Ordinance was allowed and appellants/tenants were directed to hand over the vacant possession of demised premises to the respondent/landlord within sixty days from the date of impugned order, hence this appeal.
2. ' Brief facts of the case are that the respondent/applicant filed ejectment application against the predecessor-in-interest of the appellants for his ejectment on the ground that he has sublet the demised shop premises which was on rent to him at the rate of Rs,500 per month and that he has committed default in the payment of rent from February, 1987 and has failed to pay electricity charges and has created nuisance to the neighbours and the respondent/applicant required the premises for his personal need.
3. ' The appellant/tenant filed written statement wherein he denied the case of the respondent/applicant.
4. As many as four issues were settled in view of pleadings of parties out of the same, three were answered in favour of the appellant/tenant while the issue of personal requirement in respect of demised premises was decided in favour of the respondent/applicant.
5. ' The respondent/applicant deceased Muhammad Ismail filed his own affidavit-in-evidence and produced one photograph Exh.A/1, produced photocopy of lease agreement Annexure ' A', photocopy of National Institute of Cardiovascular Diseases as Annexure B, photocopy of. Card of NICD Karachi as Annexure B/1, and also filed affidavit/in-evidence of Abdul Ghafoor. The predecessor-in-interest of appellants/tenants has not filed any affidavit-inevidence denying the statements made in the affidavit-in-evidence by the respondent/applicant. It appears from the statement dated 31-7-1990 at page 135 of R & P made by the appellant's learned counsel that the original tenant Qazi Muhammad Humayun expired on 19-6-1990 and his legal representatives were brought on record and as per order dated 11-5-1991 side of the predecessor-ininterest of the appellants/tenants was closed and after hearing final arguments, the ejectment case was disposed of as per impugned order.
6. ' I have heard Mr. Akbar Khan Ghouri; learned counsel for appellant and Mr. Waqar Lodhi, learned counsel for respondent, perused the record and proceedings of the case and the case-law cited by the learned counsel for parties.
7. ' Learned counsel for appellants has argued that as per para.7 of the ejectment application the predecessor-in-interest of the respondents/applicants was in possession of rented premises Shop No,2/93, Shah Faisal Colony, Karachi, where he was carrying on his business and stated therein that he would vacate the said rented shop when the possession of demised shop would be delivered to him and further that he was not having any other property except the said property. He has also referred to corresponding para.7 of the affidavitin-evidence of deceased landlord wherein it has been stated by him that he has handed over the vacant possession of two shops in premises No,2/180, Shah Faisal Colony, Karachi, where he was carrying on business since last many years, therefore, he needed demised shop for his personal use to start his business again in his own shops as he was unable to do the business at any other place being heart patient. Learned counsel has also taken me through the cross-examination of deceased landlord wherein he stated "There are two shops in front and four godowns on the back side of my market .........It is a fact that one shop on both sides of the corridor of my market... ... ... ...At present my two shops are on rent".
8. ' He has further argued that in view of the above evidence, there was no justification for the respondent/applicant to vacate the rented shop and further that there were inconsistent statements in para.7 of the ejectment application to that of para.7 of deceased respondent's affidavit-in-evidence and further that the respondent/applicant stated that he was not having any other property but according to him the statement in the cross-examination he was having four other shops and godowns, therefore, personal need could not be said to be bona fide one and it was tainted with mala fides. He has further contended that the original landlord who asked for the personal requirement has expired, therefore, right to need the said shop for personal requirement has extinguished, hence, the finding of learned Rent Controller is based on misappreciation of evidence and is erroneous in law. He has placed reliance upon Muhammad Ayub v.Muhammad Younus 1985 CLC 937, Abdul Rehman v. Fazal Karim 1982 CLC 2641 and Abdul Rehman v. Fazal Karim 1980 SCM R 758 in support of his contentions.
9. ' Learned counsel for respondent has argued that the case cited by the learned counsel for appellant are not applicable to the facts of the instant case as in Abdul Rehman v. Fazal Karim 1980 SCM R 758 and Abdul Rehman v. Fazal Karim 1982 CLC 2641, the landlord had expired during the pendency of ejectment application while in the instant case the landlord had expired during the pendency of this appeal. He has furhter argued that right to sue would survive in the instant case in view of the decision reported in Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46, therefore, the respondents/applicants would be entitled to possession of the shop premises even though the original landlord had expired. He has also placed reliance upon Amjad Khan v. Haji Muhammad Yameen PLD 1994 Kar. 404 and Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar.
10. 832 in support of his contentions. He has further argued that the original landlord vacated the rented shop as the landlord of the said shop pressed him hard to vacate the same and there was no bar to seek possession of his own shop for personal requirement and further choice to have particular shop for the business was with the landlord/respondent and the tenant/appellant cannot be allowed to object to the choice of the respondent/appellant as it was the prerogative of the landlord/applicant. He has further argued that the appellants/tenants have not challenged in the cross-examination the personal bona fide need of the respondent/applicant and even no suggestion was made that the need of the respondent/applicant was not bona fide one. He has placed reliance upon Mst. Waheeda Khanum v. Ghulam Hussain PLD 1993 Kara 171 and Nawadat Khan v. Mst. Surriya PLD 1993 Kar. 491 in support of his contentions.
11. The first contention of the learned counsel for the appellants that the need of the respondent is not based on good faith as their predecessor should not have vacated the rented shop and that original landlord had other shops but stated that he was not having any other shop. I do not find any substance in the said contention. Even if the respondent/landlord would not have vacated the rented shop then also under the law he could not be deprived to seek possession for his personal requirement in good faith. So far the other point that he has made misstatement that he was not having other shops would have also no merit because the respondent/landlord stated that he was having no other property except the stated property. Admittedly, the respondent/applicant has the only Property No,2/93, Shah Faisal Colony, Karachi, over which he has constructed market which consisted of four shops and godown, out of which two were on rent while two are stated to be on the rear side when the shops in question were on the front side and the shops on the rear side were not suitable for the business of the respondent/applicant as stated. Undisputedly, it is a prerogative of the landlord/applicant to have first choice of the shop and the said prerogative cannot be denied to him. The front shop being in possession of the appellants would be more suitable and better for carrying out business by the respondents/applicants. Accordingly, it cannot be said that the personal requirement of the said shops of the respondents would be mala fide on the stated grounds.
12. ' Next contention of the learned counsel for appellant is that as the respondent/applicant has expired during the pendency of this appeal, therefore, the said requirement has extinguished hence the respondents/applicants would not be entitled to have the possession of the shops premises. I do not find substance in the said contention. Reference is made to Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46 at page 53 wherein it has been observed: "It is clear, therefore, that personal actions connected with the individuality of a person do not survive him (actio moritur cum persona). There is, however, an important exception to it, i,e, where personal actions have matured into a decree or become part of the estate of the deceased. As Salmond has put it 'A right vests when all the facts have occurred which by law occur in order for the person in question to have the right' . In the words of Paton 'Every right arises from title, when all the investitive facts which are necessary to create the right have occurred, the right is vested'. By a judgment, decree or order, as the case may be, a personal action gets perfected and becomes a part of the estate of the deceased. The right to immediately possess a property subject to its being tested in appeal, is a tangible, valuable property right which comes to vest in the owner of the property and on his death passes on to his heirs. The heirs inherit his estate alongwith the vested right to obtain actual physical possession of the demised premises with the attaching limitation of law in the form of conditions attaching to such an order of possession. The legal representatives can execute the order of the ejectment and take the property on the same terms on which their deceased predecessor-in-interest was entitled to it."
13. In the instant case also ejectment order has been passed by the Rent Controller during the lifetime of the original applicant/landlord and by virtue of the said order the said right became the part of estate of deceased, therefore, the said right passed on to the legal representatives of deceased landlord who would be competent and entitled under the law to execute and implement the same subject to decision in appeal. I do not consider necessary to refer any other case-law on the point in view of decision of the Supreme Court of Pakistan. The case cited by learned counsel for appellant has no application to the facts of instant case. So far the plea of the learned counsel for appellant that the respondent/landlord has failed to prove bona fide need has no merit as there is no evidence in rebuttal to the statement of the respondent in affidavit-in-evidence. The veracity of the respondent/landlord and his witness could not be shaken in the cross-examination. The appellant's learned counsel even failed to suggest in the cross-examination of respondent/landlord that the need of the respondent/landlord was not based on good faith or was mala fide. There is nothing in evidence to suggest that the need of the respondent/landlord is not based on good faith or that the same was not honest and sincere. In fact, there is no evidence at all from the side of the appellants/tenants to rebut or challenge the evidence of the respondents/applicants who have succeeded in proving their case for personal bona fide need in respect of shop in question.
14. ' In view of the evidence, reasonings and case-law cited, I do not find any merit in this appeal which is hereby dismissed with no order as to costs. However, the appellant/tenant is given sixty days period to vacant the shop premises subject to deposit of rent.